International Commission of Jurists open letter: Concerning the removal of Chief Justice Dr. Shirani Bandaranayake

High Excellency President Mahinda Rajapakse
Honorable Speaker of the Parliament Chamal Rajapakse
Sri Jayawardenepura Kotte
Sri Lanka

January 23, 2013

Concerning the removal of Chief Justice Dr. Shirani Bandaranayake

Your Excellencies,
The International Commission of Jurists and the undersigned senior judges and
eminent jurists from around the world condemn the recent removal of Chief Justice
and urge you to act immediately to restore the independence of the judiciary by
reinstating the legal Chief Justice, Dr. Shirani Bandaranayake. We are gravely
concerned that recent actions to remove the Chief Justice have been taken in
contravention of the Constitution, international human rights law and standards,
including the right to a fair hearing, and the rule of law.

Judicial independence and the separation of powers are the bedrock of the rule of law.
International standards such as the United Nations Basic Principles on the
Independence of the Judiciary stress that judicial independence is a fundamental
requirement in promoting human rights and preserving rule of law. The United
Nations General Assembly in Resolution 65/213 of 1 April 2011 reaffirmed that an
independent and impartial judiciary is essential for the protection of human rights, the
rule of law, good governance and democracy.

The irremovability of judges is a main pillar of judicial independence. Judges may be
removed only in the most exceptional cases involving serious misconduct or
incapacity. And in such exceptional circumstances, any removal process must
comport with international standards of due process and fair trial, including the right
to an independent review of the decision. Members of the judiciary must never be
subject to removal on the basis of judicial decisions rendered in the legitimate
exercise of their professional functions.

The United Nations Special Rapporteur on the Independence of Judges and Lawyers
and the United Nations Human Rights Committee have raised concerns that the
procedure for removing judges under Article 107 of the 1978 Constitution and the
complementary Standing Orders do not adequately guarantee the right to a fair trial
rights and due process under Article 14 of the International Covenant on Civil and
Political Rights.

Sri Lanka’s actions further violate the core values of the Commonwealth of Nations
enunciated in the Singapore Declaration 1971, the Harare Declaration 1991 and the
Latimer House Principles on the Three Branches of Government 2003. The Latimer
House Principles call on member States to uphold the rule of law by protecting judicial
independence and maintaining mutual respect and cooperation between Parliament
and the Judiciary.

Finally, Sri Lanka’s actions run against the regionally applicable standards set out in
the Beijing Statement of Principles on the Independence of the Judiciary in the
LAWASIA Region.

The threats to the separation of powers, independence of the judiciary and
rule of law in the impeachment case in Sri Lanka are revealed by the
following sequence of events:

On 1 November 2012, a resolution signed by 117 Members of Parliament was
presented to the Speaker of the House, Chamal Rajapakse, to initiate impeachment
proceedings against the Chief Justice. The resolution contained fourteen allegations
relating to misconduct and non-disclosure of financial assets.

On 14 November 2012, a Parliamentary Select Committee was established pursuant
to Parliamentary Standing Orders 78A and Article 107(3) of the 1978 Constitution to
investigate the charges. The Parliamentary Select Committee was composed of seven
Cabinet Ministers and four members from the opposition political parties.

On 22 November 2012, the Supreme Court of Sri Lanka requested Parliament to
suspend the impeachment proceedings until the Court could decide on the
constitutionality of Parliamentary Standing Orders 78A. Parliament disregarded the
Supreme Court’s request and the Chief Justice appeared before the Parliamentary
Select Committee for the first time on 23 November 2012.

On 6 December 2012, Chief Justice Bandaranayake walked out of the impeachment
hearing in protest over the denial of a fair hearing. The Chief Justice was not
provided timely and full disclosure of the evidence in relation to the charges; was not
given adequate time to respond to the charges; was denied the right of crossexamination;
and was treated in a derogatory and disrespectful manner by Members
of Parliament and denied the right to a public hearing. On the same day, the four
opposition Members withdrew from the Parliamentary Select Committee.

On 7 December 2012, the seven remaining members of the Parliamentary Select
Committee concluded their investigation on the first five charges, finding the Chief
Justice guilty on three charges.

On 1 January 2013, a three-member panel of the Supreme Court ruled that the
impeachment procedure set out in Standing Orders 78A was not constitutionally valid,
holding that such procedures could only be established ‘by law’ enacted by
Parliament.

On 7 January 2013, the Court of Appeal, relying on the judgment of the Supreme
Court, issued a writ quashing the findings of the Parliamentary Select Committee on
the basis the Committee lacked authority to make such a finding.

On 11 January 2013, in utter defiance of the Supreme Court judgment and the Court
of Appeal order, Parliament passed a motion with 155 votes, to impeach Chief Justice
Dr. Shirani Bandaranayake.

On 13 January 2013, President Mahinda Rajapakse signed a decree removing the
Chief Justice from her post and delivered the document to her official residence in the
morning.

On 15 January 2013, President Mahinda Rajapakse nominated three candidates to
replace Chief Justice Bandaranayake. Former Attorney-General Mohan Peiris was
approved by the Parliamentary Council and sworn in as Chief Justice. Prior to his
appointment, Mohan Peiris served as the legal advisor to President Rajapakse and was
widely known for defending the conduct of the Sri Lankan government and
consistently blocking efforts to hold State officials accountable for gross human rights
violations.

On the same day, Chief Justice Bandaranayake issued a public statement strongly
denying all of the charges against her and asserting her status as the legal Chief
Justice of Sri Lanka. She said, “The accusations leveled against me are blatant lies. I
am totally innocent of all charges…Since it now appears that there might be violence
if I remain in my official residence or my chambers I am compelled to move…”

Attacks against the judiciary have escalated to the point of physical violence in recent
months. In July 2012, Government Minister Rishad Bathiudeen threatened a
magistrate in Mannar and then allegedly orchestrated a mob to pelt stones at the
Mannar courthouse. In early October 2012, four individuals assaulted the Judicial
Service Commission Secretary Manjula Tillekaratne in broad daylight.

The undersigned jurists urge your High Excellency President Mahinda Rajapakse and
Honorable Speaker Chamal Rajapakse to act immediately to restore the independence
of the judiciary by reinstating the legal Chief Justice Dr. Shirani Bandaranayake and
enacting a law in Parliament to govern the impeachment process. Such a law must
comply with Sri Lanka’s obligations under international human rights law and
standards.

Yours Sincerely

Justice Md. Abdul Matin
Former judge at the Appellate Division of
the Supreme Court, Bangladesh

Justice Md. Abdur Rashid
Former Judge at the Supreme Court,
Bangladesh

Justice Ajit Prakash Shah
Former Chief Justice of the Delhi High
Court, India

Justice Bharat Raj Uprety
Former Justice at the Supreme Court,
Nepal

Justice C. Baardman
Judge at the Court of Appeal of The
Hague, the Netherlands

Justice Dragana Boljevic
Judge at the High Court of Belgrade,
SerbiaPresident of Judges’ Association of Serbia
and Secretary General of MEDEL
(Magistrats Européens pour la Démocratie
et les Libertés)

Justice E.D. Bonga-Sigmond
Judge at the Court of Amsterdam, the
Netherlands

Justice Gerrard Boot
Judge at the Court of Amsterdam, the
Netherlands
Board member of Judges for Judges

Justice Azhar Cachalia
Judge at the Supreme Court of Appeal,
South Africa

Justice Moses Hungwe Chinhengo
Former judge at the High Court,
Zimbabwe and Botswana

Justice Anaclet C. Chipeta
Judge at the High Court, Malawi

Justice Fernando Cruz Castro
Judge at the Constitutional Chamber of
the Supreme Court, Costa Rica

Justice E. de Rooij
Judge at the Court of Amsterdam, the
Netherlands

Justice Radmila Dicic
Acting President of the Belgrade Court of
Appeal and Judge of the Supreme Court,
Serbia

Justice Rodolfo Gonzalez
Judge at the Constitutional Chamber of
the Supreme Court, El Salvador

Justice Augusto J. Ibáñez Guzmán
Former President of the Supreme Court,
Colombia

Justice Åsne Julsrud
Judge at the District Court of Drammen,
Norway

Justice Maclean Kamwambe
Judge at the High Court, Malawi

Justice Kalthoum Kennou
Investigative judge at the Tribunal of
Tozeur, Tunisia

Justice César Landa
Former President of the Constitutional
Court, Peru

Justice Ketil Lund
Former Judge at the Supreme Court,
Norway

Justice Qinisile Mabuza
Judge at the High Court, Swaziland

Justice D. Madise
Judge at the High Court, Malawi

Justice Mbufto Mamba
Judge at the High Court, Swaziland

Justice José Antonio Martín Pallín
Emeritus Judge at the Supreme Court,
Spain

Justice Thomas Masuku
Former Judge at the High Court,
Swaziland

Justice Florentín Meléndez
Judge at the Constitutional Chamber of
the Supreme Court, El Salvador

Justice Egbert Myjer
Former judge at the European Court of
Human Rights

Justice Reynato Puno
Former Chief Justice, Supreme Court of
the Philippines

Justice M.D. Ruizeveld
Senior judge at the Court of Amsterdam,
the Netherlands

Justice Jolien Schukking
Judge at the Court of Utrecht, the
Netherlands
Board member of Judges for Judges

Justice R.C. Stam
Judge at the Administrative High Court
for Trade and Industry, the Netherlands

Justice F.M.P.M. Strengers
Senior judge at the Court of Amsterdam,
the Netherlands

Justice Philippe Texier
Judge at the Social Division of the Court
de Cassation, France

Justice Stefan Trechsel
Judge at the Trial Chamber III,
International Criminal Tribunal for the
Former Yugoslavia

Justice Tamara Trotman
Judge at the Court of Rotterdam, the
Netherlands
Vice-President of Judges for Judges

Justice N.L.J.M. Tuijn
Deputy Chief Justice, Judge at the Court
of Appeals of Den Bosch, the Netherlands

Justice Vilenas Vadapalas
Judge at the General Court, European
Union

Justice E.J. van der Molen
Judge at the Court of Noord-Holland, the
Netherlands

Justice Gerritjan van Oven
Judge at the Court of Appeals of The
Hague, the Netherlands
President of Judges for Judges

Justice T.N.I. van Voorst Vader
Judge at the Court of Amsterdam, the
Netherlands

Justice T. Wolters
Judge at the Court of Appeal of
Leeuwarden, the Netherlands

Antonio Cluny
Assistant Prosecutor-General at the Audit
Court, Portugal
President of MEDEL (Magistrats
Européens pour la Démocratie et les
Libertés)
Commonwealth Magistrates’ and
Judges’ Association

Asma Jahangir
Advocate at the Supreme Court, Pakistan
Chair of the Human Rights Commission,
Pakistan

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